Prosecutions and Porn

Don’t rage over Utah’s involvement in the U.S. attorneys’ scandal. Rage at the scandal itself.

Reading the first stories about the Dec. 7 firings of eight U.S. attorneys by United States Attorney General Alberto Gonzales, my reaction was jaded.

So what if the White House wanted to expand its executive power by getting rid of some federal attorneys it doesn’t like? These are political appointments. Only an idiot would express shock. We’ve got a president who now has blanket power to suspend habeas corpus and effectively act as judge, jury and executioner under the Military Commissions Act of 2006, for cryin’ out loud. I was so jaded, in fact, that reading about New Mexico Republican politicians Sen. Pete Domencini and Rep. Heather Wilson phoning their U.S. attorney last October to inquire about the progress of certain prosecutions hardly bothered me.

Everyone should care about an independent judiciary that makes decisions based on facts, not politics. But, given recent e-mail revelations showing that both Gonzales and White House adviser Karl Rove were in on the plan to fire all 93 U.S. attorneys back in early January 2005, along with former White House counsel Harriet Miers, it should be clear to all that we’re better off saving our energy and concern for whoever sits in the White House come 2008. The current administration is simply too far gone.

Numerous articles on this recent scandal have quoted past Attorney General Robert Jackson: “The prosecutor has more control over life, liberty and reputation than any other person in America,” he said some 60 years ago.

Our current man in the White House would like to delete the word “prosecutor” from Jackson’s sentence and insert the words “United States President” instead.

What really made the current scandal fun, however, is its myriad level of Utah connections (see Louis Godfrey’s Politics column “Shared Ambitions,” p. 18).

Several questions arise out of Godfrey’s piece: Since when does a senatorial staffer earn the privilege of effectively rewriting federal law so that U.S. attorney positions may be filled without Senate review or oversight? What’s most ironic is that Brett Tolman, former aide to Sen. Arlen Specter, R-Penn., would insert a provision gutting Senate confirmation of U.S. attorneys, then climb the judicial ladder to become U.S. attorney for Utah after'drum roll, please'Senate confirmation. Imagine, if you will, the look on Hatch’s face if Tolman’s handiwork had gone into effect sooner, robbing the power of blessing from our senior senator.

Reading some of former Gonzales Chief of Staff Kyle Sampson’s e-mail exchanges is a bit like watching a mafia hit unfold. My favorite is Sampson’s Dec. 5, 2006, e-mail to Associate Attorney General Bill Mercer: “Administration has determined to ask some underperforming USAs [attorneys] to move on,” Sampson wrote.

Who knows. Perhaps there is a grain of truth still out there that will validate Sampson’s claim for the reason behind these firings. That looks doubtful, however. Federal records analyzed for an article by The Associated Press show that these eight U.S. attorneys were among the top-third performers. They weren’t slouches.

Stalwart Utah Republican Sampson most certainly is, you can’t help but feel sorry for the guy. Sampson tried to orchestrate everything perfectly, but was hindered by the person he was trying to help most. That is, of course, his boss. If there’s one thing we know about Gonzales for certain now, it’s that he’s probably a liar. One of Gonzales’ first responses to the firings was that, “We never had a discussion about where things stood.” Thanks to a Justice Department calendar entry, we now know that Gonzales met with senior advisers 10 days before the dismissals were unleashed.

Then we also learned that pornography played a role in all this pressure. Specifically, head of the federal obscenity task force Brent Ward wasn’t happy with the pace of prosecution on the part of two U.S. attorneys from Arizona and Nevada where an 18-count indictment against a porn video distributor was concerned. You might remember Ward as a former Utah prosecutor, not to mention a member of the Utah Citizens for Positive Community Values, which lobbied for a state law requiring art-class models to wear clothing. Ward’s complaints about these U.S. attorneys ended up on Gonzales’ radar after he wrote a complaint to Sampson.

Perhaps the videos Ward was concerned about are very bad indeed but, if you’re like me, you don’t care who’s getting sweaty with a video nasty and would like to see federal attorneys crack down on white-collar crime or drug offenses instead.

With the drive to remove Tolman’s provision from the Patriot Act this week, Rep. Chris Cannon told the Deseret Morning News he didn’t want the change now, because that would return us “to a system where judges appoint the prosecutors who will appear before them [which presents] serious separation-of-powers and impartial administration of justice issues.”

Maybe Cannon, unlike Jackson, feels U.S. attorneys are “inferior Officers” as described in Article II, Section 2, of the U.S. Constitution, and worthy of appointment by the president alone. Or, maybe he doesn’t like Hamilton’s words in the Federalist No. 75: “It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security than the separate possession of it by either of them.”